Medical Negligence News

Widow Wins Costs in Claim for the Misdiagnosis of Cancer against the NHS

Posted on: April 8th, 2015 by Medical Negligence

A widow has avoided bankruptcy after pursuing a claim for the misdiagnosis of cancer against the NHS over a nine-year period – from Australia.

In November 2006, Dr David O´Reilly (55) died from metastatic colorectal cancer three years after being diagnosed with the disease. However, two years prior to the diagnosis being made, Dr O´Reilly – who was living in Chichester, Sussex, at the time – had undergone an endoscopy to detect the cause of the symptoms he was experiencing.

The consultant who conducted the endoscopy procedure failed to notice a lesion in David´s colon and, when David sought a second medical opinion, he was misdiagnosed with irritable bowel syndrome. Following David´s death, his widow – Sue – made a claim for the misdiagnosis of cancer against the NHS, claiming that David would have survived much longer had the correct diagnosis been made at an earlier stage.

Sue subsequently moved back to Australia, as she had a severely disabled son – Shane – who suffered from cerebral palsy, and Sue needed the support of her family to care for him. As tort laws in Australia are similar to those in the UK, Sue applied for the claim for the misdiagnosis of cancer against the NHS to be heard in Australia. The NHS objected but, in 2010, the New South Wales Supreme Court agreed to Sue´s request and hearings began.

Unfortunately, within a year of Sue´s claim for the misdiagnosis of cancer against the NHS getting underway, Shane died unexpectedly due to complications related to his cerebral palsy. The judge hearing the claim, Mr Justice Peter Garling, heard a motion from the NHS to transfer the case to the UK. He agreed that Sue no longer had the commitment of caring for her son to prevent her from travelling to a location where it would be more cost-effective to hear evidence from witnesses.

Judge Garling was appointed as a temporary examiner by the Royal Court of Justice in order that he could continue hearing evidence in the claim for the misdiagnosis of cancer against the NHS; and, earlier this year he found the Western Sussex Hospitals NHS Foundation Trust in breach of its duty of care, and awarded Sue £91,300 compensation for her husband´s premature death.

A parallel claim for emotional distress was dismissed on the basis that David would have lived just a few more years had his condition been correctly identified at the time of the original endoscopy. Of more concern to Sue was a motion brought by the NHS that it should only be liable for 25% of Sue´s legal costs. The NHS argued that Sue´s legal cost were disproportionately high in comparison to the award of compensation, and that they should not be liable for the full amount.

The costs of pursuing the claim for the misdiagnosis of cancer against the NHS had run into millions in the nine years since David´s death and, if the NHS´ motion was agreed, the amount of debt Sue had accrued would force her into bankruptcy. Fortunately for Sue, Judge Garling dismissed the NHS´ motion and awarded Sue the full amount of her legal costs.